Fellers v. Modern Woodmen of America , 182 Iowa 99 ( 1917 )

Salinger, J.

1. INSURANCE : life insurance : policy: construction : death while engaged in exempted occupation : proximate cause. — I. Decedent changed his occupation from that of a common laborer to that of an electric lineman for an electric railroad. This worked that, unless certain prescribed steps were taken, defendant was under no liability on account of the death of the insured “directly traceable” to this new employment. None of the steps aforesaid were taken, but the plaintiff claims that failure to do this has been waived, and that the defendant is estopped to urge this change of occupation. The trial court held that, as matter of law, neither waiver nor estoppel has been shown.

2. Insurance': actions: defenses : excepted cansos : burden of proof. II. The defendant may be liable for the death of assured though he did change to a prohibited occupation, did not take the steps necessary to cover death from the hazards of that occupation, and though there be no estoppel to urge the change in occupation. The defendant concedes this much, because it urges as one reason why there is neither waiver nor estoppel that the certificate so remained in force as that receiving and retaining of dues and assessments worked no waiver. If, then, the decedent came to his death in such manner as that the defendant is liable upon that part of the certificate which remained alive despite the change of occupation, the court erred in holding that plaintiff might not recover. The only effect of the change in occupation was to relieve the insurer from liability for injuries “directly traceable to employment in * * * such occupation.” For the purposes of this case, the defendant is responsible unless the injuries were thus traceable.. The burden.of establishing that death is due to causes excepted by the contract is upon the insurer. Vernon v. Iowa St. Trav. Men’s Assn., 158 Iowa 597; McClure v. Great Western Acc. Assn., 141 Iowa 350; Barnabus v. Bersham Colliery Co., 103 L. T. R. 513. This burden is not discharged by merely showing a state of facts which is equally consistent with the claim that the injury is proximately due to the hazardous employment or with its not being due thereto. Eisentrager v. Great Northern R. Co., 178 Iowa 713; In re Savage, (Mass.) 110 N. E. 283. The defender must make it appear by a preponderance that the injury had some.causative connection with the peculiar hazards of the prohibited employment; that it was peculiarly due to that employment; and that these peculiar hazards are the immediately proximate cause of the injury. Has the defendant discharged that burden? Has it been shown by a preponderance that what happened to the decedent was caused by his being a lineman; that he might not have been injured as he was if he had not engaged in that occupation, but had remained in one which the certificate of insurance did not except?

How the decedent came to his death is brought before us by stipulation. He, together with one Albert Waring, were working together on top of a platform, which'platform was on top of a tx’olley car. The two were in the act of placing in position a steel trolley wire for the common employer. In order to place said wire in proper position, it was necessary to pry it into that position. To do this Waring used a wooden pry, and was in the act of forcing the wire into position. Decedent was in the act of fastening the gri-pping to said Avire to hold it in position after it had been pried into same by Wax-ing. While the two were so acting, the trolley pole of the car flew off from the trolley wire with which it had been connected; as it flew off, it struck Waring and caused him to let go of the pryer; this released the trolley wire, which flew back, struck decedent, caused him to lose his balance and be hurled to the gTOiuxd. Falling to the gi-ound, decedent struck his head on a rail of an adjoining track, crushing his skxxll and thereby eausixig his death.

Was the coxxrt justified in holding,' as matter of laAV, that this death was “directly traceable to employment” as such lineman? The exception ixx this contract is, for the pur poses of construction, a species of forfeiture, — not in the strict sense that engagixxg ixi a prohibited occupation cancels the certificate, but in the sense that being so engaged dexxies a right to recover which Avoxxld otherwise exist. Construing the exception in that view, its reasonable meaning is that thex’e shall be xxo liability if death results, not while at work as a lineman, bxxt because doing the proper work of a lineman caused the injury. Though decedent was at Avoi*k as a lineman, defendant would not be released had he beexx killed by a stray bullet from one xvho.was hunting in the neighborhood. That a drunken man falls from a scaffold AA'hile working as a lineman Avould not sxxffice. The saxne injury might occur if a common laborer, Avorking as such upon a scaffold, fell from the same because he was drunk. The injxxxues within the reasonable coxxtemplatioxx of the exception here are such as would arise from touching a live wire, from being tripped by. a wire that is being handled either in erection, repair, taking down, and the like. The injury in this case seems to us to he in no way directly traceable to the occupation of the decedent, and we think the only relation the injury had to the employment is that it occurred while such employment was being pursued. The injury did not arise because of some attribute of the trolley wire as such, but because a colaborer, being struck by such wire, fell, in falling struck decedent, and caused him to be hurled to the ground and hurt by the impact. Eliminate the fact that this occurred while both were working as linemen, and you have no injury directly traceable to the occupation; because handling any wire in any occupation, and having such wire strike one of the handlers and precipitate him upon the other, might do to that other just what was done here.. What happened to him could happen no matter what his occupation was, if he and a fellow servant were engaged in prying or otherwise dealing with a wire on a tension. Supposing these two men had been at work on a high platform, trying to compress hay by hand pressure, and by means of encircling it with a wire, at the respective ends of which each pulled to the extent of his strength; had the wire snapped under that tension, either or both having hold of the ends, he could and would have been precipitated from the platform, and might have been injured as decedent was.

2-a.

Doing a prohibited thing does not absolve the insurer, unless some causative connection between the acts and the injury to assured be shown. Jones v. United States Mutual Acc. Assn., 92 Iowa 652. This, though insured was in a place where, by the terms of the policy, he was not permitted to be. Kirkpatrick v. Aetna Life Ins. Co., 141 Iowa 74.

It is said in Fitzgerald v. Clark, 2 K. B. (1908) 796, that, for an accident to arise out of and in the course of the employment, it must result from a risk reasonably incident to the employment; that “out of” involves the idea that the injury is in some sense due to the employment. We have so fully dealt with this proposition in Griffith v. Cole Bros., 183 Iowa — that little needs to be added here. In Rodger v. School Board, (Reports, 1912) 1 Scots Law Times 271, Lox*d Johnston said, in a concurring opinion, that the death of deceased was occasioned by a fall in the street and the resulting personal injury, while he was returning from conveying a message on the business of his employer; wherefore, of course, he met injury by an accident in the course of his employment. But, it is said, the accident was not merely the fall, but the violent contact of the head with the stone i>aveinent, which was a part and parcel of the fall and caused concussion; that, therefore, “the immediate cause” of the personal injury or concussion was the fall and consequent blow.

“The immediate cause of the fall and, therefore, the remote cause of the injury, was giddiness or faintness. * * * The still more remote cause of the injury was the excessive hdht of the day, acting on a man of three score, in normal health.”

It is held the accident did not arise out of the employment, because “we are only concerned with the immediate or proximate cause of the personal injury.” In Robson v. Blakey, 5 B. W. C. C. 536, it is said the inquiry is, what is the causa causans? and “we all know that July, 1911, was a hot month; but to say that anyone who works, as it has been called, ‘neath the baleful star of Sirius’ is necessarily exposed to excessive or peculiar danger, is a proposition which has no foundation.” And in State v. District Court, (Minn.) 153 N. W. 119, that being exposed to injury from an occupation means something more than the normal risk to which all are subject, and means at least that the employment necessarily accentuated the natural hazard attendant upon work done in the course of the employment. In Robson v Blakey, 5 B. W. C. C. 536, the Lord President said:

“To what class of dangers does this man’s employment expose him? * 9 * Suppose he is a collier, I may say his employment exposes him to the risk of having things falling upon him from the roof, to the danger of tumbling down a shaft, and so on. In short, there is a peculiar class of dangers which exists only for people who go down into mines 9 9 9. The sandwich man who goes about the streets all day * 9 9 is not allowed to go onto the pavements; and he is exposed on the streets to the danger of being run over by wheeled traffic. But if you had asked this, What are the special dangers incidental to the employment of a plumber who occasionally has outdoor works? nobody in their senses would have said, ‘Oh, heat apoplexy.’ ”

x. Many accidents may happen to a workman “in the course of employment” for which his employer would incur no liability; for example, a servant engaged in a foundry yard in the course of his employment, if struck by lightning and seriously maimed, would have no claim for compensation under the act. Falconer v. London & G. E. & I. Shipbuilding Co., 3 Court of Session Cases (5th Series) 564. It is said in Hopkins v. Michigan Sugar Co., (Mich.) 150 N. W. 325:

“An employee may suffer an accident while engaged at his work or in the course of liis employment which in no sense is attributable to the nature of or risks involved in such employment, and therefore cannot be said to arise out of it. An accident arising out of an employment almost necessarily occurs in the course of it, but the converse does not follow.”

In Craske v. Wigan, 2 B. W. C. C. 35, it is held that it would be dangerous to depart from wliat has been deemed the invariable rule of the court, to Avit:

"That it is not enough for the applicant to say, 'The accident Avould not have happened if I had not been engaged in this employment, or if I had not been in that particular ;place.’ The applicant must go further, and must say, 'The accident arose because of something I was doing in the course of my employment or because I Avas exposed by the nature of mj’ employment to some pecular danger.’ ”

All that House v. Modern Woodmen of America, 165 Iowa 607, at 609, comes to, is that it Avas contended:

"The substance of the contention in support of the demurrer was and is that to apply the amendment (creating prohibited occupations) to the prior certificate Avould be to impair the obligation of the contract and to interfere Axdth the vested right of the certificate holder, and that such amendment Avas for such reason unreasonable;” and we held that this contention was not tenable.

We do not have the question of whether plaintiff is entitled to recover, as matter of law. What Ave decide is, the trial court should not have held as matter of law that the injuries to defendant were directly traceable to his employment as a lineman.

III. The conclusion reached makes it unnecessary, if not improper, to pass upon whether defendant has estopped itself to assert the change in occupation. If plaintiff may recover though there was no estoppel, whether there was one might become a moot question. — Reversed and remanded.

Gaynor, G. J., Ladd and Evans, JJ., concur.